ITC Rejects “Public Interest” Concern on Potential HTC Injunction

Staff at the U.S. International Trade Commission have rejected any “Public Interest” concerns over a potential injunction of HTC’s Android smartphone imports into the U.S. T-Mobile and Google had both submitted Public Interest arguments that a ban on HTC’s Android devices would harm consumers and carriers (like T-Mobile), but ITC staff dismissed those concerns pointing out that there is plenty of competition from other operating systems, including Windows Phone 7 and Research In Motion’s BlackBerry platform.

The ITC staff comments are in response to the Public Interest comment phase of an ongoing ITC complaint Apple filed against HTC’s Android devices. The ITC has already ruled that HTC’s Android devices infringe on two of Apple’s patents, and the Commission is progressing through the review process towards a point where they would issue a ruling on an Apple request for an injunction banning the import of HTC’s Android devices into the U.S.

Staff comments serve as research-backed advice to the Administrative Law Judges that issue rulings on the cases brought before the ITC. Individual judges and the full panel of judges that handle reviews aren’t required to accept staff advice, though they frequently do.

According to FOSS Patents, Google had argued that a ban on Android devices as a whole, as Apple is seeking, “would allow Apple to establish a virtual monopoly in the mobile device industry. Consistent with its Congressional mandate, the Commission should consider not only the likely harm to competition and U.S. consumers from the exclusion of the devices at issue in this investigation, but also the potential damage that could result from the combined effects of the Commission’s remedies in the multiple investigations concerning Android devices.”

For its part, T-Mobile had taken a line similar to Verizon’s defense of Samsung in a similar case that a ban on HTC’s Android devices would harm its efforts to develop and deploy a 4G network in the U.S., and that contrary to Apple’s arguments, T-Mobile would not be able to readily replace HTC’s infringing devices with smartphones from other makers.

ITC staff rejected these arguments, however, writing, “There is no evidence that U.S. demand for the accused products cannot be met by numerous other entities, including [Apple] or its licensees.”

The report also said, “Moreover, Apple, Nokia, RIM, Samsung –and even HTC – supply smartphones utilizing operating systems other than Android. These non-Android-based smartphones account for over 60% of the U.S. smartphone market. […] Thus, because the proposed limited exclusion order in this investigation is directed solely to infringing HTC smartphones running the Android operating system (and not all smartphones using the Android operating system), the exclusion of the accused Android-based HTC smartphones would not affect the sale of smartphones running Android (other than HTC’s products) or any other smartphones using alternative operating systems.”

The report concluded that, “Accordingly, [ITC staff] submits that the recommended relief is not contrary to the public interest.”

While ITC cases are a long and involved process, today’s report from the Commission’s staff adds considerably to the chances that Apple will be able to win what it wants, a ban on those Android devices that infringe on Apple’s intellectual property.

Android, in its present forms, is stolen IP, and as such should not be legally marketed.

However, I see no reason why Android should always have to be prohibited on devices marketed in the US, as long as after the ban on current Android devices is enforced, Google goes back to the OS drawing board and (at last) invents work-arounds that no longer involve piracy, or else pays appropriate royalties for each Android EOM (although, I’m expecting Apple will never grant a license for essential IPs to Google, regardless of how much Google would be willing to pay.)

One more decision against the attempt to steal and keep. It has been reported that Steve Jobs did warn and then follow up on a promise to do all possible to kill Android in its’ current form. I have felt all along that the target was Google’s Android and that going after HTC, Samsung et. all is just strategy.

Solamar11:40 PM EDT, Oct. 21st, 2011Guest

—skipaq
“One more decision against the attempt to steal and keep. It has been reported that Steve Jobs did warn and then follow up on a promise to do all possible to kill Android in its? current form. I have felt all along that the target was Google?s Android and that going after HTC, Samsung et. all is just strategy.”

If even a large company like Apple can’t protect it’s IP patents from the likes of el’goog, the how could some small time inventor? Hopefully the multiple suites against google and it’s partners will initiate some needed change in patent laws. Or at least make someone like google think twice before ignoring IP.

I just love this quote: “Google had argued that a ban on Android devices as a whole, as Apple is seeking, ?would allow Apple to establish a virtual monopoly in the mobile device industry.”

Funny, the king of “open"ness acknowledging that without their lovely OS Apple’s closed “walled garden” would be a virtual monopoly. Totally missing the point. There are no barriers to entry to compete with Apple - just don’t copy their stuff. Actually innovate with android and make something different and go after the market again. Easy. But shut down all existing infringing versions of android!! Great stuff.

What a lot of leagaleae to get the point across that Droid?s days could be numbered.

That’s exactly what this is not. Google basically argued that an attempt to prevent all Android phones from selling would or could be anti-competitive, and the court said that Apple isn’t trying to prevent that; they just want to prevent HTC phones from being sold. And since HTC Android phones are just a small part of the market, and there are plenty other Android phones, and plenty other HTC phones, Apple cannot be blamed for being anti-competitive here. If Apple asked for all Android sales to be stopped, the decision could be different.

Of course the first real question is whether HTC is actually doing anything that requires stopping or not, and then the question would be if all Android phones were doing the same thing, and if both were answered “Yes” then there would be the very interesting question whether you can get away with patent infringement because otherwise a monopoly might arise.

People somehow think a monopoly is disallowed or an inherently bad thing. Monopolies are legal. Google arguably has a monopoly in search outside the US where its share in many countries is over 90 percent. In the US it is around 70 percent.

What isn’t allowed is using that monopoly to gain an unfair advantage in another market. Like Google is arguably doing when it uses search results to favor its own services like Google Places over Yelp (a service it nicked). Or what Microsoft did to Netscape by using its Windows monopoly to force hardware manufacturers to favor Explorer over then dominate Netscape. Or when the electric company used to give out free light bulbs at the expense of retailers who sell light bulbs (boy do I miss that).

Of course the first real question is whether HTC is actually doing anything that requires stopping or not, and then the question would be if all Android phones were doing the same thing, and if both were answered ?Yes? then there would be the very interesting question whether you can get away with patent infringement because otherwise a monopoly might arise.